BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI.. APPEAL NO. 1 OF 2013 In the matter of : 1. Ms. Medha Patkar, D/o Mr. Vasant Khanolkar, Narmada Ashish, Navalpura, Off Kasrawat Road, Badwani-4515512 Madhya Pradesh 2. Ms. Aradhana Bhargav, W/o Shri Premnarayan, Purana Chapakhana Road, Chhindwara-480001, Madhya Pradesh 3. Mr. Sajje Chandrawanshi, S/o Kishorchand, Village Chousara, Tal. Chhindwara, Distt. Chhindwara-480001, Madhya Pradesh 4. Mr. Bramu Kavreti S/o Sumerchand, Village Chousara, Tal. Chhindwara, Distt. Chhindwara-480001, Madhya Pradesh 5. Abhay Lal S/o Ram Charan, Village Chousara, Tal. Chhindwara, Distt. Chhindwara-480001, Madhya Pradesh 6. Ms. Seela M. Mahapatra, D/o Sailabala Mahapatra, D-52, IInd Floor, Sector 10, Vasundhara, Ghaziabad-201012, Uttar Pradesh Versus 1. Ministry of Environment & Forests, Union of India, Through Secretary, Paryavaran Bhavan, C.G.O. Complex, Lodhi Road, New Delhi-110003. 2. The Chairman, Madhya Pradesh State Pollution Control Board, Paryavaran Parisar, E-5, Arera Colony, Bhopal-462016. 3. The State of Madhya Pradesh Through the Chief Secretary, Vallabh Bhawan, Bhopal-402003...Appellants 1
4. Adani Pench Power Ltd., 10 th Floor, Sambhav Building, Judges Bungalow Road, Bodakdeo, Ahmedabad-380015. 5. The Chief Conservator of Forests, Ministry of Environment and Forests, Regional Office (WZ), E-5, Kendriya Paryavaran Bhawan, E-5, Arera Colony, Link Road-3, Ravishankar Nagar, Bhopal-462016. 6. M.P. Power Management Company Ltd., Through Chairman, Shakti Bhawan, Vidyut Nagar, Rampur, Jabalpur-482008.Respondents Counsel for Appellants : Mr Sanjay Parikh, Mr. Abhimanu Shrestha, Ms. Bushra Parveen and Ms. Sridevi Pannikar, Advocates. Counsel for Respondents : Ms. Neelam Rathore along with Ms. Syed Amber, Advocates for Respondent No.1. Mr. Rajul Shrivastav, Advocate for Respondent No.2 Mr. Achi Agnihotri, Advocate for Ms. Vibha Datta Makhija, Advocate for Respondent No. 3. Mr. Dhruv Metha, Sr. Advocate along with Mr. Neil Hildreth, Mr. Sushanth Murthy, Ms. Pratibha Sridhar, Advocates for Respondent No.4 Mr. Dhruv Mehta, Sr. Advocate along with Mr. Neil Hildreth, Advocate for Respondent No.5 Mr. Vivek K. Tankha, Sr. Advocate along with Mr. Sumeer Sodhi, Advocate for Respondent No.6 PRESENT : ORDER/JUDGMENT Hon ble Mr. Justice Swatanter Kumar (Chairperson) Hon ble Mr. Justice U.D. Salvi (Judicial Member) Hon ble Dr.D.K. Agrawal (Expert Member) Hon ble Dr. G.K. Pandey (Expert Member) Hon ble Prof. A.R. Yousuf (Expert Member) Dated : July 11, 2013 2
JUSTICE SWATANTER KUMAR, (CHAIRPERSON) 1. The appellants claim to be well known social activists engaged in issues of environmental protection, unjust displacement and rehabilitation and resettlement of displaced communities along with broader issues in development planning for nearly 30 years. They also claim to be persons eligible within the meaning of Section 18(2)(e) of the National Green Tribunal Act, 2010 (for short the NGT Act ) and have preferred the present appeal under Section 16 read with Sections 14, 15(b), (c) and 18(1) and (2) of the NGT Act challenging the legality and correctness of the communication bearing No.J-13012/30/2010-IA-II(T) dated 16 TH October, 2012, issued by the Govt. of India, Ministry of Environment and Forests (MoEF), granting Environmental Clearance (EC) to M/s Adani Pench Power Ltd., Respondent No.4, for 2 x 660 MW imported coal based thermal power plant at villages Dhanora, Chausara, Dogawani Pipariya, Hiwarkhedi and Thawriteka in Chaura and Chhindwara Taluka in Distt. Chhindwara, State of Madhya Pradesh. 2. It is the pleaded case of the appellants that the environmental clearance has been granted to the Respondent No.4 in violation of the EIA notification of 2006 in an arbitrary manner and it being contrary to law, is otherwise illegal. 3. The appellants have specifically pleaded that though the environmental clearance for the proposed project has been granted vide communication dated 16 th October, 2012, yet the project proponent has been continuously violating the provisions of 2006 3
notification, the Environment (Protection) Act, 1986 as well as other relevant Acts, as enumerated in the schedule to the NGT Act. The MoEF is stated to have completely failed to take into consideration the objections, concerns and issues which were abuzz during the public hearing regarding the proposed project while granting environmental clearance. In fact, the public hearing was not conducted in accordance with law and major issues like impact on forest and river due to the proposed project, compensation to the farmers whose land has been acquired, commitment for employment given during land acquisition not kept, persons losing land to be identified and given employment, electricity for local people at concessional rates, educated youth of villages to be given employment, right-of-way for villagers whose land is adjacent to boundary wall of the plant, development of school and hospital for villagers, impact on Pench Tiger Reserve, impact on Tiger Corridor between Kanha Tiger Reserve and Balaghat Forests and formation of local committees involving local people to resolve local issues were thereby not addressed. Another important aspect on the basis of which the environmental clearance was challenged was that in the summary EIA and the minutes of the meeting on MoEF website, it is apparent that the application and the draft EIA report is based on the assumption that indigenous coal would be made available from nearby coal mines for the project. However, during consideration before the EAC for grant of EC, the project proponent stated that they had decided to switch to imported coal from South Africa due to non-availability of domestic coal. This was a major 4
departure from the representation made in Form I and the draft EIA report. The project proponent s sudden shift from local indigenous coal to imported coal should have been made available at the time of public hearing and should have been dealt with by specific conditions in the EC. Furthermore, MoEF had imposed a specific condition in the EC that sulphur and ash contents in the coal to be used in the project shall not exceed 0.5% and 29% respectively at any given time. In case of variation of coal quality at any point of time, fresh reference shall be made to the Ministry for suitable amendments to environmental clearance condition, wherever necessary. There was admittedly a change in the contents of the coal proposed to be used and it was an important issue which required study by MoEF with reference to the grant of environmental clearance. The appellants also challenge the condition in regard to rights of the SC and ST population in the area, proper Resettlement and Rehabilitation (R & R) plan, which was to be completed within a time bound manner and before commissioning of the project. The appellants find fault on all these counts in the grant of environmental clearance by MoEF. 4. The learned counsel appearing for the respondent, at the very threshold raised the question of limitation even before refuting the above contention of the appellants. The contention on behalf of the respondent is that the environmental clearance was granted and communicated on 16 th /17 th October, 2012 while the present appeal has been filed on 30 th January, 2013. There is a delay of 16 days even beyond the period of 90 days prescribed under Section 16 5
of the NGT Act and as such the Tribunal does not have even the jurisdiction to condone the delay in filing the appeal. More so, there is no sufficient cause shown by the appellants for condoning the delay in any case in filing the present appeal. 5. However, this contention is refuted on behalf of the appellants stating that they had come to know and could download the environmental clearance in the second week of January, 2013 and immediately thereafter and without any loss of time, they filed an appeal on 30 th January, 2013 in the Registry of the Tribunal. Thus, there is no delay in filing the appeal and the same has been filed within the prescribed period of limitation of 30 days. In the alternative, it is contended that there is sufficient cause for condoning the delay beyond 30 days as the appeal, in any case, has been filed much prior to the outer prescribed period of 90 days. Thus, the delay should be condoned and the appeal be heard on merits. 6. From the above rival contentions, it is clear that the Tribunal has to answer the question of limitation as a preliminary issue. Thus, the judgment was reserved in the present case upon hearing the arguments only on the question of limitation in the first instance. 7. Now let us refer to the factual averments of the respective parties on the issue of limitation. According to the project proponent, the environmental clearance was granted on 16 th October, 2012. Its intimation was printed in the newspapers on 28 th 6
October, 2012 while the appeal has been filed on 30 th January, 2013. Thus the appeal is barred by 16 days. The appeal at best could be filed by 15 th January, 2013 i.e. within 90 days from the date of grant of environmental clearance in terms of the proviso to Section 16 of the NGT Act. The appellants failed to comply with the rigours of Section 16 of the NGT Act, and thus, the appeal is liable to be dismissed as being barred by limitation. 8. According to MoEF, the environmental clearance was granted on 16 th October, 2012, which was uploaded on the website of the Ministry on 17 th October, 2012. Thus, the same could be downloaded immediately thereafter. The MoEF had filed its reply on 9 th April, 2013 and in paragraph 21 of its reply, it was specifically stated. In furtherance to a specific order of the Tribunal, MoEF had filed another affidavit on 2 nd May, 2013 and in paragraph 2.2 of the said affidavit, it was stated that the environmental clearance was uploaded on the Ministry s website on 17 th October, 2012 and could be downloaded instantly in the normal functioning of the National Informatics Centre of the Ministry of Communication and Information Technology. That being so, it is contended that limitation should be counted from 17 th October, 2012 and the appeal at best could be filed by 16 th January, 2013 (within 90 days) from the date of communication. However, the appeal having been filed on 30 th January, 2013 is barred by 14 days and the Tribunal has no jurisdiction to condone the delay of an appeal filed beyond the period of 90 days in terms of proviso to Section 16 of the NGT Act. According to the appellants also, there is no dispute to the fact 7
that the environmental clearance was granted on 16 th October, 2012. However, the appellants dispute the fact that the Ministry had uploaded the environmental clearance dated 16 th October, 2012 on 17 th October, 2012 and it was downloadable thereof. It is further stated that the conditions of EC and EIA Notification 2006 have been violated by the project proponent with impunity and a number of complaints were made by the appellants through the State and the Central authorities, but no action was taken. Therefore, because of the continuing violation, the cause of action is a continuing one and there is no delay in filing the present appeal. The project proponent has not complied with his obligation of publishing the EC in the newspaper, communicating the same to the local government administration and making it available to the affected villagers. In the light of the project proponent having violated the specific terms in this regard, even the period of limitation will not start. It is also stated that neither the project proponent nor MPPCB has uploaded the copy of the EC on their website. 9. It is the specific case of the appellant that the appellant was unable to download the environmental clearance and other relevant documents. Therefore, in exercise of its rights under the Right to Information Act, 2005 the appellant wrote a letter dated 5 th December, 2012 demanding the documents. The said letter reads as under: Kindly provide the following documents related to the Adani Pench Thermal Power Project in Chhindwara District of Madhya Pradesh: 8
1. Project plan, environment management plan, EIA report required for EC submitted by the project authority to the Ministry of Environment and Forest. 2. All correspondence between Project Proponent, Govt of MP and MoEF and any other concerned agencies. 3. Copy of clearances Forest as well as environment granted by the Ministry for the project. 5. Details of visit made by MoEF and report from that visit to the project site. Name of the applicant: Seela M Mahapatra Address: 6/6, Jangpura B, Mathura Road, New Delhi- 110014 Phone Number- 011-24374535, 09212587159 10. This letter was responded to by the CPIO & Dy. Director, MoEF, Govt. of India, vide his letter dated 26 th December, 2012. The reply reads as under:.the project file could be retrieved only a week back and as the information sought by you is voluminous, it is informed that the file is being sent for digitization and a soft copy of the project file could be furnished once it is over, which is expected soon. 11. In face of the above indisputable position that the appellant was not able to get a copy of the EC till the second week of January, 2013 and after downloading at that time, the appellant filed the appeal on 30 th January, 2013 within the period of limitation. Thus, the question of condoning the delay and/or showing sufficient cause would not arise in the facts of the present case. The provisions of Section 16 of the NGT Act relate to prescription of limitation for filing of an appeal. Any person aggrieved has the right to file appeal under this provision. However, such an appeal should be filed within 30 days from the date on which the issue is communicated to him. The Tribunal, however, is 9
vested with the power of entertaining an appeal beyond the period of 30 days but within a further period of 60 days from such communication. In other words, the Tribunal is competent to condone the delay if an appeal is filed within 90 days from the date of the communication but loses its jurisdiction thereafter. As far as what is communication and how the period of limitation prescribed under Section 16 of the NGT Act is to be determined and with reference to what Acts, we need not dwell upon the issue as it already finds answers in some details in a recent judgment of the Tribunal in the case of Save Mon Region Federation & Anr v. UOI & Ors. (MA No.104/2012) decided on 14 th March, 2013 2013(1) All India NGT Reporter Page 1. The Tribunal held as under: 13. The legislature, in its wisdom, has used the expression communicated to him under Section 16 of the NGT Act in contradistinction to serving, receiving, delivery or passing of the order. Normally, these are the expressions which are used in the provisions relating to limitation. Generally, limitation is to be reckoned from the date which is relatable to these expressions. For instance, the period of limitation may commence from the date the order is received by or served upon an individual, as presented in the relevant provisions. The expression communication is neither synonymous nor even equivalent in law to the above mentioned expressions. The above-mentioned expressions require merely a unilateral act, that is, dispatch of the order, receipt of the order or service of the order upon an individual. But the act of communication cannot be completed unilaterally. It does require the element of participation by two persons, one who initiates communication and the other to whom the communication is addressed and who receives the same, i.e. the intended receiver. At this stage, we may examine what is the legal meaning and connotation of the expression communication. Communication is initiated by transforming a thought into words, act and expression. It is then converted into a message which is transmitted to the receiver. The receiver understands the message. It may or may not evoke a response. There may be cases where only 10
the sender and the receiver alone are not of significance but even the channel of communication may have some importance. The Black s Law Dictionary, 9 th Edition, explains communication as: 1. The expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another s perception. 2. The information so expressed or exchanged. The Law Lexicon, 3 rd Edition, defines communication as: A statement made in writing or by word of mouth by one person to another; the transfer of information by speech and by acts, signs, and appearances. 14. Wharton s Law Lexicon, 15 th Edition, explains the terms communicate, communicated, communication as well as communication to the public as under: Communicate, means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427 (733) : AIR 1981 SC 728 : (1981) 2 SCR 352. It is a strong word. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. Kubic Darusz v. Union of India, AIR 1990 SC 605 (609) XXXX XXXX XXXX XXXX Communicated, a posted acceptance takes effect when it is communicated to the offeror; communicated is defined as delivered at his address, Halsbury s Laws of England, Vol 9, para 281, p.160. XXXX XXXX XXXX XXXX Communication, means that the electrical impulse or signal transmitted by a telephone 11
call was in itself a communication and any intentional interception of that signal in the course of its transmission through a public telecommunication system was subject to the provisions, Morgans v. D.P.P. [HL(E)], (2000) 2 WLR 386. [Interception of Communication Act, 1985, s.1(1)(uk)] A communication did not take place until the subscriber s telephone was answered at the destination and the calling parties communicated with each other. In other words, the digits dialled were a means to an end in the making of a communication, Morgans v. DPP (DC), (1999) 1 WLR 981. Means information imparted by one person to another, A Dictionary of Law, William C. Anderson, 1889, p.213. In Indian Parliament Communications are exchanged between the President and either House of Parliament and between both the Houses of Parliament. The President may send a message to either House of Parliament with respect to a Bill pending before it or otherwise and a House which receives such message shall consider any matter required by the message with all convenient dispatch, Constitution of India, Art.86(2). Communication, in respect of order of dismissal would mean that the same is served upon the delinquent officer, State of Punjab v. Amar Nath Harika, AIR 1966 SC 1313. XXXX XXXX XXXX XXXX Communication to the public, for the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public. [Copyright Act, 197 (14 of 1957), S.2(ff)] Means making any work available for being seen or heard or otherwise enjoyed by the pubic directly or by any mean display or diffusion other than by issuing copies of such 12
work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available [Copyright Act, 1957, s.2(ff)] 15. The Oxfords Dictionary of English, 3 rd Edition, also defines the words communication as under: communication 1. The imparting or exchange of information by speaking, writing or using some other medium : television is an effective means of communication [at the moment I am in communication with London. ; a letter or message containing information or news;; the successful conveying or sharing of ideas and feelings: there was a lack of communication between Pamela and her parents. social contact: she gave him some hope of some return, or at least of their future communication. 2 (communications) means of sending or receiving information, such as telephone lines or computers: satellite communications [as modifier] a communications network. [treated as sing.] the field of study concerned with the transmission of information. 3 (communications) means of travelling or of transporting goods, such as roads or railways: a city providing excellent road and rail communications.. 16. Upon analysis of the above, it is clear that communication is made by one and received by another. It requires sufficient knowledge of the basic facts constituting the communication. The action of communicating is precisely sharing of knowledge by one with another of the thing communicated. Communication, particularly to the public, has to be by methods of mass communication, like satellite, website, newspapers etc. Communicated is a strong word. It requires that sufficient knowledge of basic facts constituting the grounds of the order should be imparted fully and effectively to the person. 17. The expression is communicated to him, thus, would invite strict construction. It is expected that the order which a person intends to challenge is communicated to him, if not in personam than in rem by placing it in the public domain. Communication would, thus, contemplate complete knowledge of the ingredients and grounds required under law for enabling that person to challenge the order. Intimation must not be understood to be communication. Communication is an expression of 13
definite connotation and meaning and it requires the authority passing the order to put the same in the public domain by using proper means of communication. Such Communication will be complete when the order is received by him in one form or the other to enable him to appropriately challenge the correctness of the order passed. 18. Law gives a right to any person who is aggrieved by an order to prefer an appeal. The term any person has to be widely construed. It is to include all legal entities so as to enable them to prefer an appeal, even if such an entity does not have any direct or indirect interest in a given project. The expression aggrieved, again, has to be construed liberally. The framers of law intended to give the right to any person aggrieved, to prefer an appeal without any limitation as regards his locus or interest. The grievance of a person against the Environmental Clearance may be general and not necessarily person specific. This provision of Section 16 requires communication of the order to such person(s). The expression him takes within its ambit any person who is aggrieved by an order. Therefore, the expression communication accordingly has to receive a more generic and at the same time, definite meaning. The nature of the communication has to be such that it reaches the public at large, as that appears to be the legislative intent. A person is expected to, and can, only act when the order is put in public domain. He is expected to download the same from the website of the concerned Ministry/Department, and if he so requires thereafter, make an application for receiving specific information. However, the content of the order is required to be communicated by the MoEF as well as by the Project Proponent. 19. The limitation as prescribed under Section 16 of the NGT Act, shall commence from the date the order is communicated. As already noticed, communication of the order has to be by putting it in the public domain for the benefit of the public at large. The day the MoEF shall put the complete order of Environmental Clearance on its website and when the same can be downloaded without any hindrance or impediments and also put the order on its public notice board, the limitation be reckoned from that date. The limitation may also trigger from the date when the Project Proponent uploads the Environmental Clearance order with its environmental conditions and safeguards upon its website as well as publishes the same in the newspapers as prescribed under Regulation 10 of the Environmental Clearance Regulations, 2006. It is made clear that such obligation of uploading the order on the website by the Project Proponent shall be complete only when it can simultaneously be downloaded without delay 14
and impediments. The limitation could also commence when the Environmental Clearance order is displayed by the local bodies, Panchayats and Municipal Bodies along with the concerned departments of the State Government displaying the same in the manner afore-indicated. Out of the three points, from which the limitation could commence and be computed, the earliest in point of time shall be the relevant date and it will have to be determined with reference to the facts of each case. The applicant must be able to download or know from the public notice the factum of the order as well as its content in regard to environmental conditions and safeguards imposed in the order of Environmental Clearance. Mere knowledge or deemed knowledge of order cannot form the basis for reckoning the period of limitation. 12. From the above dictum, it is clear that a communication would mean putting it in public domain and completing the acts as are contemplated in the EIA Notification of 2006, read with conditions of the EC and the provisions of the Act. In terms of the scheme of the notification and law, there are three stakeholders in the process of grant of environmental clearance : (a) Project Proponent (b) Ministry of Environment and Forests, and (c) Other agencies which are required to fulfill their obligations to make the communication complete in terms of the provisions of the Act and the notification concerned. 13. The MoEF shall discharge its onus and complete its acts to ensure communication of the environmental clearance so as to trigger the period of limitation. The MoEF upon granting of the environmental clearance must upload the same on its website within seven days of such order, which would remain uploaded for at least 90 days, as well as put it on its notice board of the Principal as well as the Regional Office for a period of at least 30 days. It 15
should be accessible to the public at large without impediments (Refer Save Mon Region Federation & Anr v. UOI & Ors.). 14. The project proponent, upon receipt of the environmental clearance, should upload it permanently on its website. In addition thereto, the project proponent should publish it in two local newspapers having circulation where the project is located and one of which being in vernacular language. In such publication, the project proponent should refer to the factum of environmental clearance along with the stipulated conditions and safeguards. The project proponent then also has to submit a copy of the EC to the heads of the local authorities, panchayats and local bodies of the district. It will also give to the departments of the State a copy of the environmental clearance. 15. Then the Government agencies and local bodies are expected to display the order of environmental clearance for a period of 30 days on its website or publish on notice board, as the case may be. This is the function allocated to the Government departments and the local bodies under the provisions of the notification of 2006. Complete performance of its obligations imposed on it by the order of environmental clearance would constitute a communication to an aggrieved person under the Act. In other words, if one set of the above events is completed by any of the stakeholders, the limitation period shall trigger. If they happen on different times and after interval, the one earliest in point of time shall reckon the period of limitation. Communication shall be complete in law upon fulfilment of complete set of obligations by 16
any of the stakeholders. Once the period of limitation is prescribed under the provisions of the Act, then it has to be enforced with all its rigour. Commencement of limitation and its reckoning cannot be frustrated by communication to any one of the stakeholders. Such an approach would be opposed to the basic principle of limitation. 16. The Tribunal must adopt a pragmatic and practical approach that would also be in consonance with the provisions of the Act providing limitation. Firstly, the limitation would never begin to run and no act would determine when such limitation would stop running as any one of the stakeholders may not satisfy or comply with all its obligations prescribed under the Act. To conclude that it is only when all the stakeholders had completed in entirety their respective obligations under the respective provisions, read with the notification of 2006, then alone the period of limitation shall begin to run, would be an interpretation which will frustrate the very object of the Act and would also cause serious prejudice to all concerned. Firstly, this completely frustrates the purpose of prescription of limitation. Secondly, a project proponent who has obtained environmental clearance and thereafter spent crores of rupees on establishment and operation of the project, would be exposed to uncertainty, danger of unnecessary litigation and even the possibility of jeopardizing the interest of his project after years have lapsed. This cannot be the intent of law. The framers of law have enacted the provisions of limitation with a clear intention of specifying the period within which an aggrieved person 17
can invoke the jurisdiction of this Tribunal. It is a settled rule of law that once the law provides for limitation, then it must operate meaningfully and with its rigour. Equally true is that once the period of limitation starts running, then it does not stop. An applicant may be entitled to condonation or exclusion of period of limitation. Discharge of one set of obligations in its entirety by any stakeholder would trigger the period of limitation which then would not stop running and equally cannot be frustrated by mere noncompliance of its obligation to communicate or place the order in public domain by another stakeholder. The purpose of providing a limitation is not only to fix the time within which a party must approach the Tribunal but it is also intended to bring finality to the orders passed on one hand and preventing endless litigation on the other. Thus both these purposes can be achieved by a proper interpretation of these provisions. A communication will be complete once the order granting environmental clearance is placed in public domain by all the modes referred to by all or any of the stakeholders. The legislature in its wisdom has, under the provisions of the Act or in the notification of 2006, not provided any other indicator or language that could be the precept for the Tribunal to take any other view. 17. In a changing society and for progress and growth of the nation, development is necessary. The path of development must not lead to destruction of environment. There has to be a balance struck between the two. In other words, development and environment must go hand in hand to achieve the basic 18
Constitutional goal of public welfare. It is often said that we cannot have development at the cost of environment but the corollary to it is also true that we cannot only have environment and no development. Development and environment need to be seen in complementary and not in antagonistic terms. Inclusive development would not be possible without emphasis on environmental protection. If one reads Section 16 of the NGT Act in conjunction with the clauses of the notification of 2006, the obvious conclusion is that the period of limitation beyond 90 days is mandatorily non-condonable. The Tribunal appears to be vested with no jurisdiction to condone the delay beyond 90 days once the date on which the limitation has triggered is determined in accordance with the above principles. The provisions of Section 4 of the Land Acquisition Act, 1984 provide for different modes of publication of preliminary notification and also states that last of the dates of such publication and giving of such public notice would be the date upon which the period specified shall be computed. In contra to such legislative provisions, the provisions of the present Act are silent and do not intend to provide any advantage to the applicant on fulfilment of obligations by different stakeholders at different times. In such circumstances, the earliest in point of time would have to be considered as the relevant date for computation of limitation. 18. Another factor that would support such a view is that a person who wishes to invoke jurisdiction of the Tribunal or a court has to be vigilant and of his rights. An applicant cannot let the time 19
go by without taking appropriate steps. Being vigilant and to his rights and alive and conscious to the remedy provided (under the law) are the twin basis for claiming a relief under limitation. Vigilantibus non dormantibus jura subvenient. Now, we have to examine whether any of the stakeholders in the present case, has fully or completely discharged their obligations in terms of Section 16 of the NGT Act, read with Notification of 2006 and the Save Mon Region Federation judgment supra. As far as the project proponent is concerned, it has admittedly not discharged its obligations upon grant of environmental clearance on 16 th October, 2012. It is pointed out that the project proponent, even till date, has not permanently put the said environmental clearance along with the environmental conditions and safeguards on its website. Neither did it publish the environmental clearance along with its conditions and safeguards; nor did it effect the publication in two newspapers having circulation in the area in which the project is located, one being in vernacular language. The project proponent only published intimation regarding grant of environmental clearance to it in the newspapers on 28 th October, 2012. There is nothing on record to show that the project proponent has provided a copy of the EC to the Government Departments, Panchayats, Municipality and/or local bodies in terms of clause 10(i)(d) of the Notification of 2006 and those Departments have thereafter complied with the requirements of the notification. Thus in the case of the project proponent, it cannot be argued that limitation had started running against the applicant on 28 th October, 2012 or any date prior 20
thereto as it committed default of its statutory obligation and incomplete compliance cannot give rise to commencement of the period of limitation. 19. Now, we must deal with the plea taken up by the MoEF. According to them, the environmental clearance was granted on 16 th October, 2012 and was uploaded on the website of the Ministry on 17 th October, 2012. Resultantly, the appeal is barred by 16 days, it having been filed on 30 th January, 2013. Their contention is that the Tribunal cannot even condone the delay beyond the period of 90 days in terms of Section 16 of the NGT Act. 20. On the first blush, the contention appears to have merits, but once examined on actual facts and correspondence placed by the parties on record, the contention needs to be rejected. According to the applicant, the EC order dated 16 th October, 2012 could not be downloaded for a considerable period, and in fact, till January, 2013. The applicant duly downloaded the same somewhere around 15 th January, 2013 and filed the appeal on 30 th January, 2013 within the prescribed period of 30 days, which is much less than the 90 days, the extended period of limitation. The applicant wishes to draw strength for the reason that on 5 th December, 2012, it had written a letter to the Ministry under RTI Act demanding EC and other documents. To this letter, the Ministry responded that the file which was sent for digitization had not been retrieved and that after completion of the work, a copy would be provided. The letter written by the Ministry certainly supports the case of the appellant. If the EC order dated 16 th October, 2012 was on the website, all that was 21
required of the Ministry was to inform the appellant that the order was available on their website and that even the executive summary of the EIA report was also available on the website and the appellant could download the same, but for reasons best known to it, a senior officer of the Ministry wrote that the document would be supplied to them in due course. Thus, the documents (soft copy), admittedly were supplied/dispatched to the appellant after filing of the appeal i.e. vide letter dated 8 th February, 2013. 21. We must also notice here that in the judgment in Save Mon Region Federation supra, the Tribunal had the occasion to deal with the question of the defective website of the Ministry where the orders or documents could not be downloaded for a considerable period. This position, in that case, has even been admitted by the MoEF and in the light of the letter dated 26 th December, 2012 of the Ministry, it can safely be believed that the EC order dated 16 th October, 2012 was not capable of being downloaded on 17 th October, 2012, as claimed by the MoEF. Interestingly, the affidavit on behalf of the MoEF has been filed by the same officer who had authored the letter dated 26 th October, 2012 and he chooses not to provide any explanation for the circumstances and causes of issuance of the said letter. Thus, we have to draw an inference, which shall be, on the one hand, in consonance with the normal rules of behaviour of human beings, and on the other, with the correspondence that has been written by the Ministry of Environment and Forests in the normal course of its business. 22
22. As MoEF and SEIAA are the most important stakeholders in the EIA process, we direct MoEF/SEIAA that the EC granted should be uploaded as early as possible, not later than 7 days from the date of such grant and the website to be maintained properly. This may be brought to the notice of all SEIAAs for compliance by the MoEF. Besides, in order to avoid communication gap, MoEF is also directed to mention as one of the conditions in the EC letter that the EC granted be widely published in accordance with the provisions of EIA notification, 2006 by all the stake holders. 23. For the reasons afore-stated, we are of the considered view that the present appeal has been filed within the period of limitation and the objection raised by the respondent is without any merits. The preliminary objection raised by the respondent is hereby rejected and we direct the appeal to be listed on merits. 24. There shall, however, be no order as to costs. Justice Swatanter Kumar Chairperson Justice U.D. Salvi Judicial Member Dr. D.K. Agrawal, Expert Member Dr. G.K. Pandey Expert Member Prof. A.R. Yousuf Expert Member 23
New Delhi July 11, 2013 24